EFTA01085713

INTRODUCTION 
In a stunning reversal of the position they espoused on the record 
at the SORA hearing, the People oppose Appellant Jeffrey E. Epstein's 
appeal of the order of the New York Supreme Court, Criminal Term, 
New York County, determining him to be a Level 3 sex offender, 
without designation, under New York's Sexual Offender Registration 
Act (SORA), Correction Law Article 6-C, by wholeheartedly relying 
upon -- and even quoting in exacting and lurid detail -- the very 
Probable Cause Affidavit that was rejected by the Florida prosecutors 
who handled Appellant's criminal case and which the People themselves 
expressly repudiated as unreliable for purposes of calculating 
Appellant's risk level under SORA. 
jWhether this complete abandonment of the People's 
previous position and sudden defense of the hearing court's 
unsupportable Order reflects a sincere but misguided re-
evaluation of the facts at issue or a more opportunistic 
surrender to political pressures to avoid a potentially 
unpopular position on a sex crimes case, the People should be 
estopped from so radically reversing course on appeal. 
1 
EFTA01085713

(-THIS IS WONDERFUL APPELLATE RHETORIC, BUT MAY 
BE FODDER FOR THE MEDIA HEADLINES. I ONLY POINT 
THAT OUT SO THAT WE ARE ALL THINKING ABOUT THE 
FACT THAT THIS COULD CREATE RENEWED INTEREST] In 
direct and reasonable reliance on the People's representations that the 
District Attorney's Office, as the party representing the State and 
statutorily bearing the burden of proof at the SORA hearing, would not 
seek a Level 3 designation and would agree to a Level 1 designation on 
consent, Appellant reasonably understood that the SORA hearing would 
be a non-adversarial proceeding with no opportunity or need to present 
evidence. For the People now to suggest that Appellant erred "as a 
tactical matter" in trusting the prosecutor's word, and moreover, should 
be procedurally barred from challenging the Court's legally infirm 
Order because of supposed preservation issues, is disingenuous and 
squarely at odds with the prosecutor's duty to do justice. 
Moreover, contrary to the suggestion in the People's brief, the 
People's decision to reject the Board recommendation, challenge the 
reliability of the Case Summary, and advocate that Appellant be 
adjudicated the lowest risk level, Level 1 -- in line with every other 
2 
EFTA01085714

jurisdiction to consider and evaluate Appellant's offenses -- was not 
based on misimpressions or a flawed understanding of the law. Rather, 
the People's position at the SORA hearing was the result of months of 
deliberation that included investigation, discussions with Appellant's 
counsel, and interaction with the Florida State Attorney's Office that 
actually investigated, prosecuted, and convicted Appellant of the 
offenses for which he is now required to register in New York under 
SORA. Upon considering the Florida investigation and primary source 
transcripts and documents that were excluded from the abbreviated, 
inaccurate, and inflammatory hearsay presentation of the Board, the 
Assistant District Attorney who represented the People at the SORA 
hearing -- no less than the Deputy Bureau Chief of the Sex Crimes Unit 
-- reached the same conclusion as that reached by officials from every 
other jurisdiction to have examined the case closely: [ that however 
objectionable, Appellant's conduct was  constituted nothing 
more than that of a "john" who solicited massage and 
prostitution services from consenting women, and Appellant's 
offenses do not warrant the most severe level of registration 
under SORA. 4"NOTHING MORE THAN A JOHN" IS TAG LINE 
3 
EFTA01085715

THAT WILL ALSO BE NEWSWORTHY, AND POTENTIALLY 
ANTAGONIZE USAO; ON THE OTHER HAND, EVEN IF YOU 
SOFTEN THIS BY ELIMINATING THE `NOTHING MORE 
THAN" LANGUAGE, THE BASIC ARGUMENT THAT WILL BE 
ATTRIBUTED TO JE THAT THE GIRLS WERE CONSENTING 
PROSTITUTES WILL STILL BE FODDER FOR THE MEDIA 
AND STILL POTENTIALLY ANTAGONIZE USAO/VILLAFANA, 
SO NOT SURE THAT REMOVING THE HYPERBOLE WILL 
REALLY DO MUCH TO PROTECT JE ANYWAY. 
MOREOVER, 
NOT SURE HOW MUCH ANTAGONIZING USAO/VILLAFANA 
SHOULD DICTATE WHAT IS DONE HERE.] 
Appellant was not engaged in a widespread commercial trafficking 
ring targeting minors, as the Board portrays, but rather, participated in 
consensual, commercial activity with women who voluntarily sought out 
Appellant and whom Appellant believed were aged 18 and older (and 
who for the most part were). In the ISOLATED [WHY ARE WE 
ARGUING 
ACTUAL 
FACTS 
HERE 
IN 
ANY 
EVENT. 
MOREOVER, BY STATING "ISOLATED" DON'T WE INVITE 
THE RESPONSE OF THE USAO'S LIST OF IDENTIFIED 
4 
EFTA01085716

VICTIMS? I REALIZE THAT THERE WILL BE NO WRITTEN 
RESPONSE, BUT IF WE GO TO HEARING . . . ON THE OTHER 
HAND, RESPONDENT HAS ALREADY MENTIONED THE 
FEDERAL INVESTIGATION AT THE END OF RESPONDENT'S 
BRIEF, SO IT WOULD NOT SURPRISE ME IF THE 
RESPONDENT RAISES THE LIST OF FEDERAL VICTIMS IN 
ANY EVENT. ON BALANCE, THE CONCEPT OF "ISOLATED 
INSTANCES" SOUNDS LIKE OVERREACHING AND MAY 
UNDERMINE THE POINT THAT JE WAS LIED TO. I WOULD 
DELETE "ISOLATED"] instances where Appellant unwittingly 
received services from underage women, the evidence establishes that 
these 
women intentionally and systematically concealed and 
misrepresented their ages to him. This view is substantiated by the 
primary source evidence provided to the District Attorney's Office, 
placing the limited set of materials furnished by the Board in context as 
misleading and unreliable. Moreover, it is consistent with the fact that, 
nothwithstanding the 22-page, accusation-filled Probable Cause 
Affidavit, after a careful investigation of the accusations contained 
therein undertaken by Florida officials, —Appellant was only ever 
5 
EFTA01085717

arrested for, charged with, and convicted of two offenses -- the felony for 
which Florida law requires him to register and a second non-
registerable felony 
dcepite the 22 page, occupation filled Probable
Gause-AffiElavit-an44he-extensive-incestigatien-unelertaken-by4194Ela 
ef-fieials. 
That the Court so flagrantly disregarded the role of the prosecutor 
at the SORA hearing and abandoned its own duty under SORA to make 
a de novo determination based on factors proven by clear and 
convincing evidence provides ample basis for vacating the Order. 
Additionally, the Order of the hearing court adjudging Appellant a 
Level 3 offender was based on improper considerations and suppositions 
by the Court and penalized Appellant for conduct that is patently not 
registerable under SORA, all in violation of Appellant's statutory and 
constitutional rights. 
Finally, the People improperly attempt to introduce in their 
appellate brief new factually erroneous contentions concerning the 
circumstances by which Appellant was only ever charged with the two 
Florida offenses to which he ultimately pled guilty. In attempting to 
inject this new "evidence" into the record, the People themselves tacitly 
6 
EFTA01085718

acknowledge that the hearing court's Order is not supported by the 
existing record. Accordingly, the Order adjudging Appellant to be a 
Level 3 offender should be vacated and his SORA risk level should be 
recalculated based on the evidence and in accordance with the law. 
ARGUMENT 
I. 
THE 
PEOPLE 
SHOULD 
BE 
ESTOPPED 
FROM 
REVERSING THEIR 
POSITION ON APPEAL WITH 
RESPECT TO THE RELIABILITY OF THE BOARD'S CASE 
SUMMARY AND RECOMMENDATION. 
As an initial matter, the People's opposition to Appellant's appeal 
and challenge [WHY ARE YOU SAYING "CHALLENGE", ON APPEAL 
THE PEOPLE ARE NOT CHALLENGING THE HEARING COURT'S 
IMPROPER LEVEL 3 SORA ADJUDICATION? THE PEOPLE ARE 
SUPPORTING IT]  to the hearing court's improper Level 3 SORA 
adjudication stands in stark contrast to the People's position at the 
SORA hearing itself and should not be permitted. See Kilcer v. Niagara 
Mohawk Power Corp., 86 A.D.3d 682, 682 (3d Dep't 2011) ("A litigant 
should not be permitted to lead a tribunal to find a fact one way and 
then attempt to convince a court in a different proceeding that the same 
fact should be found otherwise; the litigant should be bound by the prior 
stance that she clearly asserted."); Karasik v. Bird, 104 A.D.2d 758 (1st 
7 
EFTA01085719

Dep't 1984) ("It is a well-settled principle of law in this state that a 
party who assumes a certain position in a legal proceeding may not 
thereafter, simply because his interests have changed, assume a 
contrary position. Invocation of the doctrine of estoppel is required in 
such circumstances lest a mockery be made of the search for truth."); 
Chautauqua County Federation of Sportsmens Club, Inc. v. Caflisch, 15 
A.D.2d 260, 264 (4th Dep't 1962) ("Generally speaking, a party will not 
be permitted to occupy inconsistent positions or to take a position in 
regard to a matter which is directly contrary to, or inconsistent with, 
one previously assumed by him, at least where he had, or was 
chargeable with, full knowledge of the facts and another will be 
prejudiced by his action."). 
At the SORA hearing, the People directly contested the Board's 
Level 3 recommendation and advised the Court that their investigation 
revealed the underlying Probable Cause Affidavit to be unreliable: 
The People did receive the board's recommendation of a 
Level Three. 
However, we received the underlying 
information from them and also had some contact with 
Florida, and we don't believe that we can rely on the entire 
probable cause affidavit. 
8 
EFTA01085720

A.83 (Tr.). Now on appeal, the People attempt to distance themselves 
from their well-founded and properly reasoned hearing position, clearly 
articulated by the Deputy Chief of the Sex Crimes Unit, by dismissing 
repeated statements about the unreliability of the Probable Cause 
Affidavit as a "simple misunderstanding." Resp. Br. at 47. While citing 
no change in circumstance to justify such an abrupt and complete 
turnaround, the People now try to defend the Level 3 Order, which the 
hearing court made without evidentiary basis and without articulating 
findings of fact and conclusions of law. Indeed, the People improperly 
attempt to bolster their newfound alignment with the hearing court by 
offering speculative arguments as to the rationale for the Court's ruling 
and conjuring incorrect explanations as to why Appellant was not 
prosecuted on the vast majority of allegations in the Probable Cause 
Affidavit. 
See Resp. Br. at 47 (surmising, without basis, that the 
hearing court determined "where zealous private counsel are involved ... 
negotiated plea compromises may sometimes be reached well before an 
indictment has been handed down," and incorrectly suggesting that 
such was the case with Appellant). Through such tactics, the People 
impugn their own credibility, and as such, their brief should be 
9 
EFTA01085721

disregarded and Appellant's appeal decided upon the Appellant's papers 
and the record alone. See Section IV, infra. 
The People should not be permitted to benefit from their own 
unjustified reversal of position. Instead, the People should be estopped 
from arguing in support of an Order that they clearly opposed on the 
record. "[The] purpose of equitable estoppel is to preclude a person from 
asserting a right after having led another to form the reasonable belief 
that the right would not be asserted, and loss or prejudice would result 
if the right were asserted." Shondel v. Mark D., 7 N.Y.3d 320, 326 (N.Y. 
2006). Indeed, courts have invoked the doctrine of estoppel against 
government entities when not doing so would result in a "manifest 
injustice." Matter of 1555 Boston Rd. Corp. v. Finance Adm'r of City of 
N.Y., 61 A.D.2d 187, 192 (2d Dep't 1978) (manifest injustice would 
result if city was not estopped by its actions when petitioner relied on 
its agreement with the city, failed to take legal steps as a result of the 
reliance, and could no longer take those legal steps); see also Landmark 
Colony at Oyster Bay v. Bd. of Supervisors of County of Nassau, 113 
A.D.2d 741, 744 (2d Dep't 1985). 
10 
EFTA01085722

Here, the People argue in the first instance that several of 
Appellant's arguments on appeal should be disregarded on preservation 
grounds. While Appellant disputes that it has made any appellate 
arguments not properly raised before the hearing court, any 
shortcomings in Appellant's presentation of issues before the hearing 
court are directly attributable to Appellant's reasonable and justifiable 
reliance on the People's representations that a Level 1 adjudication was 
the just and proper risk level given the unreliability of the Board 
materials. See A.82-A.96, generally; see also Email of Dec. 10, 2010. 
Indeed, but for the People's agreement to advocate for a Level 1 
adjudication on consent, Appellant was primed to conduct an 
adversarial hearing to contest the sufficiency of evidence to support the 
Board recommendation. [IF WE ARE TRYING TO AVOID A REMAND 
FOR A NEW HEARING ARE WE INVITING A HEARING ON THE 
EVIDENCE WITH THIS STATEMENT THAT APPELLANT WAS 
PRIMED TO CONDUCT AN ADVERSARIAL HEARING . . .? ON THE 
OTHER HAND. IS IT EVEN REMOTELY POSSIBLE THAT THE 
APPELLATE COURT WOULD DECIDE JE'S LEVEL? IF NOT, THEN 
NO HARM IN SAYING WAS PRIMED TO ARGUE.]  By relying on the 
11 
EFTA01085723

assurances of the District Attorney's Office, the party bearing the 
burden of proof for the State, that there was no need for an evidentiary 
hearing, Appellant changed its approach to the SORA proceeding and 
did not introduce countervailing evidence to establish the unreliability 
of the Board materials.' Indeed, the People themselves acknowledge 
that Appellant acted in reliance on the People's representations that 
they would be taking a position aligned with Appellant's at the SORA 
hearing and disclaiming the reliability of the Board materials, thus 
eliminating any need for an adversarial evidentiary presentation. See 
Resp. Br. at 57, n. 5. The People should not now be permitted to benefit 
from any shortcomings in Appellant's presentation at the SORA hearing 
that they themselves occasioned, particularly where the People's change 
in position on appeal is so stark and without legitimate explanation. 
Accordingly, the People should be estopped from asserting their new 
appellate position. 
1 
As set forth in greater detail in Section II, infra, the District Attorney's Office 
was already presented with, and had already considered, much of this 
countervailing evidence as part of its pre-hearing investigation and discussions with 
Appellant's counsel. 
12 
EFTA01085724

II. 
THE COURTS LEVEL 3 DETERMINATION WAS BASED 
ON DEMONSTRABLY UNRELIABLE MATERIALS AND IS 
NOT 
SUPPORTED 
BY 
CLEAR 
AND 
CONVINCING 
EVIDENCE AS REQUIRED BY SORA AND FEDERAL 
CONSTITUTIONAL LAW. 
In adjudicating Appellant a Level 3 offender, the hearing court 
improperly and unjustifiably disregarded the position of the Assistant 
District Attorney charged with representing the State and instead, 
without making any independent examination of the quality of the 
evidence being challenged by both parties, accepted the Board's Case 
Summary at face value and adopted the Board recommendation and 
scoring in full. Despite being advised that the People reviewed the 
documents underlying the Board materials, spoke to the Florida 
prosecutors responsible for Appellant's case, met with Appellant's 
counsel, and reviewed additional evidence from subsequent and related 
proceedings, the Court dismissed the People's advocacy by stating, "I 
don't think you did much of an investigation here." A.86 (Tr.). Yet the 
record and procedural history of this SORA matter tell a much different 
story. 
Contrary to the Court's hasty conclusion and the People's curious 
characterization on appeal, the People conducted an extensive 
13 
EFTA01085725

investigation prior to the SORA hearing, leading to the inescapable 
conclusion that the Board recommendation was not supported by clear 
and convincing evidence. In fact, as borne out in the record, the SORA 
hearing was adjourned several times on consent of the parties to permit 
the People an opportunity to speak directly with the Florida authorities 
who investigated and prosecuted Appellant, as well as to review sworn 
testimony and witness statements to supplement and contextualize the 
limited materials furnished by the Board. 
See A.81 (Handwritten 
Notations on Court Jacket - Jeffrey Epstein, No. 30129-2010). 
Among the materials furnished to the District Attorney's Office 
prior to the SORA hearing was a compendium of sworn testimony and 
interview transcripts (as opposed to mere summaries) from the same 
witnesses and complainants cited in the Probable Cause Affidavit and 
the Board's Case Summary. See Letter of October 28, 2010. These 
materials revealed glaring misquotes and material omissions of fact in 
the Probable Cause Affidavit and Case Summary. 
They also 
highlighted the stark contrast between the jumbled, inflammatory and 
non-specific allegations in the Case Summary and the actual evidence 
concerning the alleged conduct for which Appellant was being assessed 
14 
EFTA01085726

under SORA. More fundamentally, these materials clearly established 
that the Board's calculation of Appellant's risk level under SORA was 
unsupportable under the legally mandated "clear and convincing 
evidence" standard, as the People rightfully represented at the SORA 
hearing. See Correction Law §§ 168-k(2), 168-n(2); People v. Johnson, 
11 N.Y.3d 416, 421 (2008). 
A. 
The People Rejected the Board Recommendation As 
Unreliable Following Several Months of Investigation 
and Deliberation Prior to the SORA Hearing. 
The People's disavowal of the Probable Cause Affidavit and 
advocacy in support of a Level 1 adjudication was not based on a 
"mistaken interpretation of the governing legal standards," as the 
People now contend, see Resp. Br. at 33, but rather, was the reasoned 
and principled culmination of months of investigation, scrutiny of the 
Board materials, and careful deliberation in light of applicable legal 
standards, at the highest levels of the Sex Crimes Unit of the District 
Attorney's Office. The procedural history of the SORA hearing itself 
reveals this to be the case. 
In early August 2010, Appellant was notified that New York 
would require him to register under SORA, despite not being a resident 
15 
EFTA01085727

of New York, given his ownership of a secondary property in 
Manhattan.2 
See A.53 (Letter of M. Weinberg to NYS Board of 
Examiners of Sex Offenders, dated Aug. 16, 2010). Shortly thereafter, 
in response, Appellant's counsel submitted a letter to the Board 
outlining Appellant's personal background as an accomplished and 
respected 
financial advisor and philanthropist, acceptance 
of 
responsibility for his offenses, lack of prior and subsequent criminal 
record, successful completion of sentence and supervision, and 
determinations made by Florida officials and JAPPELLANT'S 
FORENSIC PSYCHOLOGIST <- SHOULDN'T WE JUST SAY A 
FORENSIC PSYCHOLOGIST, RATHER THAN APPELLANT'S 
FORENSIC PSYCHOLOGIST?] that Appellant poses a low, or 
"negligible," risk of reoffense. See A.53 (Letter of M. Weinberg to NYS 
Board of Examiners of Sex Offenders, dated Aug. 16, 2010). Less than 
two weeks later, on August 26, 2010, Appellant was notified that the 
Board had recommended a Level 3 classification and that a SORA 
hearing was scheduled for September 15, 2010. See A.68 (Letter from 
2 
It bears noting that Appellant had already been voluntarily registered with 
New York's Sexual Offender Monitoring Unit (SOMU) since May 2010. See, e.g., 
A.88-A.89 (Pr.). 
16 
EFTA01085728

Supreme Court to Jeffrey E. Epstein Informing of SORA Level 
Determination Hearing, dated Aug. 26, 2010); A.71-A.76 (Letter from 
Supreme Court to Counsel Informing of SORA Determination Hearing, 
dated Aug. 26, 2010). Appellant promptly retained New York counsel 
and sought a brief adjournment to provide counsel an opportunity to 
prepare for the hearing. See A.77 (Letter from Jay P. Lefkowitz to Hon. 
Ruth Pickholz, dated Sept. 9, 2010). 
In October 2010, Appellant's counsel submitted a detailed 
memorandum to the Assistant District Attorney assigned to the SORA 
hearing and met with both the assigned Assistant District Attorney and 
the Deputy Chief of the Sex Crimes Unit. See Letter Memorandum of 
Oct. 3, 2010. At the invitation of the District Attorney's Office, counsel 
for Appellant followed up that meeting by providing for the People's 
review additional evidence from the Florida investigation and 
subsequent proceedings to supplement the relatively limited materials 
provided by the Board. See Letter of October 28, 2010. Additionally, 
Appellant's counsel furnished the District Attorney's Office with current 
contact information for the former State Attorney for Palm Beach 
17 
EFTA01085729

County, Florida who oversaw the investigation and prosecution of 
Appellant's case. See Email of [CITE]. 
The SORA hearing was adjourned no fewer than three more 
times, until January 18, 2011, to provide the People with an 
opportunity to review the materials, speak with Florida officials, and 
conduct their investigation of Appellant's underlying Florida case. See 
A.81 (Handwritten Notations on Court Jacket - Jeffrey Epstein, No. 
30129-2010). On December 10, 2010, the District Attorney's Office 
advised Appellant's counsel that they would consent to Appellant being 
designated as a Level 1 offender, following their review of Appellant's 
offenses. See Email of December 10, 2010. When the SORA hearing 
was held on January 18, 2011, the People -- represented by the Deputy 
Chief of the Sex Crimes Unit rather than the more junior Assistant 
District Attorney originally assigned to the matter -- advised the Court 
that based upon the People's investigation and interaction with Florida 
authorities, the Board materials could not be relied upon in full and 
therefore did not support a Level 3 adjudication. See A.83-A.87 (Tr.). 
Despite the months of investigation that the People devoted to the 
matter, the Court interrupted the People's presentation, berated the 
18 
EFTA01085730

prosecutor, disregarded the People's position, and adopted the Board 
recommendation in full without conducting any meaningful evidentiary 
inquiry to make reasoned findings of fact as required under statutory 
and constitutional law. See A.82-A.96 (Tr.), generally. 
While the People may now attempt to distance themselves from a 
position that was supported by the law and evidence but unfortunately 
rejected by the SORA hearing court, the history of this matter makes 
clear that the People's decision to disclaim the Board recommendation 
was neither hastily made 
nor 
the 
product 
of 
any naive 
misunderstanding of SORA itself. 
B. 
The District Attorney's Office Appropriately Applied 
the Governing Legal Standard, As Set Forth by 
SORA 
and Its Guidelines, For Assessing 
Appellant's Risk 
Level Based on Uncharged 
Allegations. 
The decision of the Assistant District Attorney at the SORA 
hearing to deem the Board recommendation unreliable and advocate for 
a lower risk level was neither naive, uninformed, nor capricious. 
Rather, the People's position at the SORA hearing (as opposed to their 
current position on appeal) was legally appropriate, in accordance with 
19 
EFTA01085731

SORA, and completely in line with what multiple other jurisdictions 
had already determined through their own review of Appellant's case. 
The SORA Guidelines, by statute, set forth the "procedures to 
assess the risk of a repeat offense by a sex offender and the threat to 
public safety." 
See Correction Law § 168-1(5). 
These Guidelines 
specifically direct that while evidence to establish designated risk 
factors under SORA is "not limited to the crime of conviction," points 
should not be assessed for a factor "unless there is clear and convincing 
evidence of the existence of that factor." Sex Offender Registration Act: 
Risk Assessment Guidelines and Commentary, Commentary at 5, ¶ 7 
(2006). The Guidelines then specifically elaborate: 
[T]he fact that an offender was arrested or indicted for an 
offense is not, by itself, evidence that the offense occurred. 
By contrast, the fact that an offender was not indicted for an 
offense may be strong evidence that the offense did not 
occur. 
Id. (emphasis in original). 
While Respondents are correct to point out that non-prosecution is 
not necessarily conclusive evidence that certain offenses did not occur, 
the SORA Guidelines are explicit that non-prosecution may be 
compelling evidence that such offenses did not occur. See id. Here, the 
20 
EFTA01085732